United States District Court, E.D. New York
Shkolnik PLLC Counsel for the Plaintiff, By: Paul J. Napoli,
Esq., Tate J. Kunkle, Esq., Of Counsel
Lewis & Bockius LLP Counsel for the Philips Defendants,
By: John McGahren, Esq., Stephanie Feingold, Esq., Ariel
Kapoano, Esq., Of Counsel.
Greenberg Traurig LLP Co-Counsel for the LIIG Defendants, By:
Steven Russo, Esq., Robert Rosenthal, Esq., Evan Preminger,
Esq., Of Counsel.
Paget & Riesel PC Co-Counsel for the LIIG Defendants, By:
Mark A. Chertok, Esq., Jonathan Kalmuss-Katz, Esq., Of
MEMORANDUM OF DECISION & ORDER
D. SPATT UNITED STATES DISTRICT JUDGE.
25, 2017, the plaintiff Hicksville Water District
(“HWD” or the “Plaintiff”) commenced
this action against defendants Philips Electronics North
America Corporation, and Philips North America LLC (together,
“Philips”), as well as Long Island Industrial
Group One LLC, Long Island Industrial Group LLC, Long Island
Industrial LLC, GSM LI LLC, ICA LI LLC, SAF LI LLC, and FED
LI LLC (together “LIIG”) (all together, the
“Defendants”). The Plaintiff alleges violations
of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (“CERCLA”), as
well as state-law claims of public nuisance, negligence,
failure to warn, negligence per se, trespass and
before the Court are two motions, one by Philips, pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ.
P.” or “Rule”) 12(b)(6), seeking to dismiss
the complaint for failure to state a claim upon which relief
may be granted and another by LIIG seeking the same relief
pursuant to Rule 12(b)(6) (together, the “Instant
following reasons, Philips' motion to dismiss is granted
in part and denied in part and LIIG's motion to dismiss
is granted in part and denied in part.
The Factual Background
otherwise noted, the following facts are drawn from the
Plaintiff's complaint, and for the purposes of the
instant motion, are construed in favor of the Plaintiff.
Plaintiff is a public utility based in Hicksville, New York.
It serves a 7.9 square mile area and contains two elevated
storage tanks, three ground level tanks, and ten plant sites
with fifteen public drinking water wells. HWD obtains its
water from the Long Island Aquifer System, the principal
drinking source for the area. It has been classified as a
“sole source” aquifer under the Safe Drinking
Water Act of 1974, 42 U.S.C. § 300 et seq. HWD
provides water to 48, 000 customers in more than 15, 000
homes and businesses in parts of Hicksville, Bethpage, East
Meadow, Jericho, Levittown, Syosset and Westbury.
the HWD is a commercial property located at 230 Duffy Avenue,
Hicksville, New York (the “Property”). The
Property consists of 6.76 acres of land adjacent to Long
Island Railroad tracks and consists of a 122, 900 square foot
building and a parking lot.
about 1953, Philips, the owner of the Property at that time,
built a factory on the Property which manufactured electron
tubes and semiconductors. Two years later, Philips
“purchased” Amperex Electronics Corporation and
moved their manufacturing operation from Brooklyn, New York
to the Property. Philips' manufacturing operations at the
site included the machining, heat treating, chemical
cleaning, metal and glass working, cathode coating and metal
plating processes that included the use of industrial
solvents. These manufacturing operations continued from 1953
that time, the Plaintiff alleges that Philips'
manufacturing process included the use of 1, 4-Dioxane, a
synthetic industrial chemical that is completely miscible in
water. 1, 4- Dioxane is widely used as a stabilizer in
certain chlorinated solvent, paint strippers, greases and
waxes. It is classified by the Environmental Protection
Agency (“EPA”) as “likely to be
carcinogenic to humans” by all routes of exposure.
Short-term exposure may cause eye, nose and throat
irritation; long-term exposure may cause liver and kidney
damage. 1, 4-Dioxane can migrate rapidly into the groundwater
and is relatively resistant to biodegradation in the
1989, Philips ceased operations and, for all intents and
purposes, closed the Property. At that time, the
manufacturing equipment was allegedly removed. On February
13, 2007, the Property was purchased by LIIG, the current
2014, the EPA released monitoring data from one of the
Plaintiff's underground wells, Well 4-2, which showed
that 1, 4-Dioxane levels were 33 parts per billion
(“ppb”) in the well. While the EPA has no
standard for 1, 4-Dioxane, the New York State Department of
Health (“DOH”) standard is 50 ppb. Allegedly, the
Plaintiff is required to “take steps to protect the
public health” if levels exceed half the DOH standard.
result of the 1, 4-Dioxane levels, Well 4-2 was taken
off-line in January 2015. It has remained off-line ever
October 2016, the New York State Department of Environmental
Conservation (“DEC”) listed the Property as a
Superfund site “due to the elevated levels of toxic
solvent contaminants in both the groundwater and soil
vapor.” There has allegedly been remedial work
performed at the Property under the oversight of the DEC.
Plaintiff alleges that the Defendants contaminated the
Plaintiff's soil, groundwater and potable water supplies
by their manufacturing operations, and failure to remediate,
contain, or timely notify the Plaintiff, after becoming aware
of the above-mentioned contamination.
seeking damages for investigation costs, testing costs,
treatment costs as well as damages to HWD's property. In
total, the Plaintiff is seeking compensatory damages in the
amount of $350, 000, 000 and punitive damages of $600, 000,
The Relevant Procedural History
25, 2017, the Plaintiff filed the above-mentioned complaint
in the Supreme Court of the State of New York, Nassau County.
The Defendants subsequently filed a joint notice of removal
on July 27, 2017.
September 11, 2017, Philips moved under Rule 12(b)(6) to
dismiss the complaint, contending that the Plaintiff's
allegations, even if taken as true, fail to plausibly state
claims upon which relief can be granted. That same day, LIIG
filed a separate motion under Rule 12(b)(6) also seeking to
dismiss the complaint. Both motions are fully briefed. The
Court notes that the Plaintiff has withdrawn its private
Standard of Review: Fed.R.Civ.P. 12(b)(6)
considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court must accept the factual allegations set forth in
the complaint as true and draw all reasonable inferences in
favor of the Plaintiff. See, e.g., Trs. of
Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt.,
843 F.3d 561, 566 (2d Cir. 2016); Walker v. Schult,
717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold
Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir.
1995); Reed v. Garden City Union Free Sch. Dist.,
987 F.Supp.2d 260, 263 (E.D.N.Y. 2013).
the Twombly standard, the Court may only dismiss a
complaint if it does not contain enough allegations of fact
to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The
Second Circuit has expounded that, after Twombly,
the Court's inquiry under Rule 12(b)(6) is guided by two
First, although a court must accept as true all of the
allegations contained in a complaint, that tenet is
inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Second, only a
complaint that states a plausible claim for relief survives a
motion to dismiss and [d]etermining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129
S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009)).
complaint must include “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” in order to survive a motion to dismiss. Fed.R.Civ.P.
8(a)(2). Under Rule 8, a complaint is not required to allege
“detailed factual allegations.” Kendall v.
Caliber Home Loans, Inc., 198 F.Supp.3d 168,
170 (E.D.N.Y. 2016) (quoting Twombly, 550 U.S. at
555). “In ruling on a motion pursuant to Fed.R.Civ.P.
12(b)(6), the duty of a court ‘is merely to assess the
legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support
thereof.'” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 113 (2d Cir. 2010) (quoting Cooper v.
Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). The Court
“[is] not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550
U.S. at 555.
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